Draft Law

The process of drafting the HIV/AIDS Bill started with the International Policy Makers Conference on HIV/AIDS, held in May 2002 in New Delhi, where the need for a law on HIV was highlighted. An Advisory Working Group (AWG), chaired by the National AIDS Control Organisation (NACO), was set up to initiate this process, comprising members from civil society, people living with HIV and the government. The AWG approached the Lawyers Collective HIV/AIDS Unit to undertake the task of preparing a draft law on HIV.

The AWG held 12 meetings between June 2002 and August 2003 to discuss various issues related to the draft law including the process for devising the law, reviewing material and literature collected and collated as background research for the law, and guiding Lawyers Collective HIV/AIDS Unit as it proceeded to work on the law. In addition to the AWG meetings, a meeting was held with the then Health Secretary, Ministry of Health and Family Welfare, Government of India, in November 2003 for an appraisal of the draft and the process adopted.

Why a special law on HIV?

HIV has revealed the inadequacies of existing laws as well as of the health infrastructure in India in an unprecedented way. It has highlighted most particularly the tensions and conflicts between health, human rights, state power and wealth. For example, in a health care setting, the lack of adequate resources pits the rights of a person living with HIV to treatment, against the rights of doctors and healthcare workers to universal precautions, making everybody vulnerable and exacerbating discrimination. Existing laws and policies reveal deeply rooted biases and inherent contradictions, which make it difficult for people living with HIV and marginalized communities to access services. Prime examples are criminalisation of soliciting for sex work and drug use, resulting, in the isolation of these communities, and in the negation of their rights.

India has no existing anti-discrimination legislation which would cover discrimination on the grounds of HIV. Nor is there an adequate existing health legislation in India to address all the issues discussed above. Specifically, a law on HIV is required for the following reasons:

The vagaries of common law: Most legal issues that arise in the context of HIV/AIDS are governed by common law – where law is defined by principles set down in prior case law by judges. This allows for the personal predilections of judges to impact cases of HIV and AIDS, an approach that lends itself to inconsistency, and to rulings that are sometimes in opposition to the existing, well thought out policy of the government.

Addressing discrimination in the private sector: The guarantee of equality in the Indian Constitution is available only against state entities and there is no restriction on discriminatory practices in the private sector, be it in healthcare, employment, or education. Most countries have enacted anti-discrimination laws applicable to the private sector to ensure a universally applicable legal system.

Insufficiency of policies: the Indian Government has adopted a number of policies on HIV which mandate a rights-based approach; these policies however, do not have the force of law and are not binding or enforceable in court.

Law reform: There are various interventions amongst marginalised populations like sex workers, injecting drug users and men who have sex with men in India that effectively check the spread of HIV, notably, condom promotion and needle syringe and exchange programmes. Harsh legal regimes like the Immoral Traffic Prevention Act, 1956, the Narcotics Drugs and Psychotropic Substances Act, 1985 jeopardize these initiatives. Such interventions have to be legally protected to ensure that they continue providing services and information that empower persons to protect themselves and others from HIV/AIDS.

Fulfilling international obligations and commitments: In 2001, the United Nations General Assembly adopted the Declaration of Commitment on HIV/AIDS. India as a signatory to this Declaration is committed to general obligations such as the prohibition of discrimination and specific obligations such as ensuring that by 2005, at least 90% of young persons aged 15 to 24 have access to information, education, and services necessary to reduce their vulnerability to HIV. The Indian government is obligated therefore to enact legislation that will fulfill these and other obligations such as the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of all forms of Discrimination Against Women

For all these reasons we need a specific statute to address HIV/AIDS – its prevention, its treatment, and the manner in which we respond to the people most affected by it. A nationally applicable rights-based statute would serve several purposes in this regard. It would provide holistic coverage, consistency, clarity and predictability in order for courts to effectively pass judgment in HIV/AIDS cases; it would provide certainty for people to seek remedy from a strong, reliable legal system; and it would enshrine ethical, equitable and just practices that become harbingers for change in the many other contexts and spheres in which people are continuously disempowered. It will ultimately reflect the ideals and principles for a more inclusive and humane society.

Drafting Process

The Bill was prepared after extensive research and nationwide consultations with stake-holders including people living with HIV, high risk groups, women and children’s groups, healthcare service providers, trade unions, lawyers and civil society organisations.

The Bill embodies principles of human rights and seeks to establish a humane and egalitarian legal regime to support India’s prevention, treatment, care and support efforts vis-à-vis the epidemic.

Prohibition of discrimination: The Bill provides protection against discrimination in employment, education, healthcare, travel, and insurance in both the public and private sectors.

Informed consent for HIV testing, treatment and research: The Bill mandates the provision of non-coerced, written consent after giving full details about the risks, benefits and alternatives.

Non-disclosure of HIV related information:The Bill recognizes a person’s right to privacy and confidentiality of HIV status with certain exceptions

Access to treatment: The Bill requires that the State provide free of cost access to comprehensive HIV related treatment including antiretroviral drugs, diagnostics and nutritional supplements.

Right to a safe working environmentfor doctors, healthcare workers and other persons whose occupation may put them at risk of exposure to HIV. The Bill imposes an obligation on healthcare institutions to provide necessary universal precautions and prophylaxis.

Promotion of risk reduction strategies for groups at higher risk of HIV infection: Targeted interventions like the promotion of condoms among sex workers and men who have sex with men and distribution of clean needles to people who inject drugs have proven to prevent HIV transmission. Certain criminal laws, however, impede these services by threatening providers and recipients with prosecution. The Bill provides legal immunity to risk reduction programmes, thus strengthening efforts to prevent HIV.

Information, education, and communication:The Bill obliges the government to make HIV related information accessible to all. It also mandates the government to create IEC material with community inputs, showing sensitivity across gender and age. These resources should be multilingual, easily understood and regularly updated.

Implementation mechanismsincluding institutional grievance redressal, Health Ombudsman and HIV/AIDS authorities. These will be supported by special procedures to be followed in courts, including suppression of identity and expeditious hearing to make justice accessible to HIV affected persons.

Special provisions for those who are disproportionately affected by the epidemic, particularly women, children, and persons in the care and custody of the State-. These set of provisions define specific rights for women, children and people in the care and custody of state in order to counter the wide-ranging societal discrimination faced by them

The HIV/AIDS Bill was submitted to NACO in August 2006 after taking feedback from State Governments, State AIDS Control Societies (SACS) and Central Government Ministries. The Bill is still to be tabled in Parliament.